June 29, 2013

When Phillippe Reines — the man behind Hillary's "reset" button — said "fuck off" and "have a good life" to Michael Hastings — the reporter who died recently in a mysterious car crash.

In the comments to the "Snowden is like a hot meat pie in your hands" post — about what leaker Edward Snowden means to the Russians — David said "So much for reset. Apparently Obama and Clinton have not improved relations [with Russia] much." Which got me looking up articles about Hillary Clinton's foolish "reset" button. I found "Hillary’s Aide Really Half-Assed That ‘Reset’ Button Thing" from March 2009:
[F]ingers had to be pointed at someone, and, for the most part they were conveniently targeted at a guy everyone hated already anyway, Hillary's senior adviser Phillippe Reines, who was nearly fired during the presidential campaign for making a tactless comment about John McCain's torture experience. He's also been agitating some in the State Department press corps by restricting their access.
(I think the referenced comment about McCain is here.) Now, we talked about Reines last fall in connection with this story: "Hillary Clinton Aide Tells Reporter To 'Fuck Off' And 'Have A Good Life.'" And I'm surprised to see that the reporter is Michael Hastings, who died in a fiery single-car wreck on June 18th:
He had emailed a warning to colleagues on June 17 saying the "Feds" were interviewing his close friends and associates. He added: "I'm onto a big story, and need to go off the radat (sic) for a bit." BuzzFeed editor Ben Smith confirmed that he had received the email....

The circumstances and rumors surrounding the death led the FBI to issue a statement stating that Hastings was never under investigation.
In this light, you might want to read that Phillipe Reines/Michael Hastings email exchange again. Hastings was asking questions like "Why didn’t the State Department search the [Benghazi] consulate...?" and "What other potential valuable intelligence [besides Ambassador Stevens's diary] was left behind that could have been picked up by apparently anyone searching the grounds?" Reines became extremely defensive and abusive:
I now understand why the official investigation by the Department of the Defense as reported by The Army Times The Washington Post concluded beyond a doubt that you’re an unmitigated asshole.

How’s that for a non-bullshit response?

Now that we’ve gotten that out of our systems, have a good day.

And by good day, I mean Fuck Off.
ADDED: From 4 days ago: "Was Michael Hastings Murdered? Internet Conspiracy Theories Are Rife."

"Snowden is like a hot meat pie in your hands..."

"... even if you want to eat it very much, it’s very hot and maybe it’s better to throw it on the floor," said Igor M. Bunin, the director of the Center for Political Technologies in Moscow.
"To make a deal with America to turn Snowden over would be a slap in the face of public opinion because he is already a hero in Russia and part of the West. On the other hand, not turning him over destroys your relationship with America."
From a NYT article titled, "While N.S.A. Leaker Stays in Hiding, Russian TV Builds a Pedestal for Him." Excerpt:
“The Internet is an invention of the U.S. Ministry of Defense,” [said the pro-Kremlin analyst Vyacheslav A. Nikonov]. “Where is the Internet? Physically, it is in the United States. What is the Internet? It’s an American nongovernmental organization which is, of course, connected with the intelligence services of the United States.”...

“For Americans, human rights is a powerful tool for influencing other countries,” [said Aleksandr Prokhanov, a nationalist ideologue who has emerged as a leader in conservative thought]. “A country ‘violates human rights,’ and its president becomes a devil incarnate, the society destabilizes, the human rights issue is followed by attack planes, and the country is wiped out from the face of the earth.”

5 headlines from The Daily News.

1. "Couple having sex against window fall to their deaths."

2. "Woman, 70, with severe wound kept alive by hundreds of maggots after daughter leaves her to rot."

3. "Woman in the Netherlands had five to six 'foot orgasms' a day."

4. "California woman sentenced to life in prison for chopping off ex-husband's penis, then grinding it in garbage disposal."

5. "Son plants bomb in mom’s suitcase, killing her and 43 others during flight." (This happened in 1955.)

Trayvon Martin's stepmother Alicia Stanley wants you to know: "I exist... I'm the one... I'm the one...."

You don't see her at the trial where the biological mother sits with the biological father, and she's not the "father's fiancee" whose residence was near where the shooting took place, but she sees herself as Trayvon's real mother.

I don't know who made the decision to keep her in the background. Perhaps the Martin family's lawyers thought there were already too many mother figures in the Trayvon story and decided she should be eclipsed. If so, they should have worked harder to obtain her cooperation, because, as you'll see in the interview — here — she feels aggrieved. She wanted her time in the spotlight, and I'd be interested in knowing the details of the decision of the Anderson Cooper show to put her on. There's a "woman shunned" quality to much of what she says, and I suspect other news shows determined that it's too women's television or too outside the racial justice template.

Now playing in the Theater of Racial Reconciliation: the George Zimmerman trial.

TalkLeft says:
Lawyers for the [Trayvon] Martin family now say the case is not about racial profiling or race.... Then why did Benjamin Crump say race was "the elephant in the room." Racial injustice was the core of their argument. It was always about race to them. Race was what they used to transform this local shooting into a case of national importance.
Meanwhile, at Instapundit:
IT’S REALLY BEGINNING TO LOOK AS IF CHARGES NEVER SHOULD HAVE BEEN BROUGHT HERE: Neighbor, cop back George Zimmerman’s account of fight with Trayvon Martin.
Watching much of the trial these last 3 days, I've come to believe that the prosecution is conducting a theatrical performance in racial reconciliation. It wasn't politically easy to decline to prosecute Zimmerman, even though the evidence showed he could not be convicted, so this prosecution was mounted to demonstrate to the public that Zimmerman should not be convicted. I'm not condoning this use of the power to prosecute. I'm simply observing what is happening. I think the trial is theater, and if it's done right — with people like Crump contributing what they can — the people who got stirred up in Act I can experience catharsis.

Remember Act I? It had that wonderful cameo performance from President Obama:

He told us this was "a tragedy." Catharsis "is a metaphor originally used by Aristotle in the Poetics to describe the effects of tragedy on the spectator":
In his works prior to Poetics, Aristotle had used the term catharsis purely in its medical sense (usually referring to the evacuation of the katamenia — the menstrual fluid or other reproductive material).  Here, however, he employs it as a medical metaphor. F. L. Lucas maintains, therefore, that purification and cleansing are not proper translations for catharsis; that it should rather be rendered as purgation. "It is the human soul that is purged of its excessive passions."...

"In real life," [one scholar] explained, "men are sometimes too much addicted to pity or fear, sometimes too little; tragedy brings them back to a virtuous and happy mean." Tragedy is then a corrective; through watching tragedy, the audience learns how to feel these emotions at proper levels."
In the end, one must hope, we will come into balance.

"Perhaps the biggest difference between the racers and the randonneurs was socioeconomic."

"Racing was a working-class sport — prize money was a way out of the coal mines or factories."
"You don't have the liberty to say, 'Well, the other guy deserves to win' if your living depends on it," [Jan Heine, editor of Bicycle Quarterly, a Seattle-based magazine about the history, technology and culture of biking].

Randonneuring was more of a refined hobby. "If you're doing this for fun, suddenly the distinction between winner and second becomes meaningless," says Heine.
"There was a lot of animosity in France, actually, between the tourists and the racers," Heine explains. "Because the tourists said, 'We are going in the mountains, and we are a participatory sport.' " Participatory meaning that women could ride alongside men — and people could ride basically whatever they wanted. This drove innovations in bicycle technology that today are widespread: If you've ever ridden a bike with a derailleur, thank the randonneurs.
Interesting the way the inclusiveness toward women changes things — this particular activity... and everything else. Who wins and who loses? Or... shall we say?... the inclusion of women changes the nature of the activity so that speaking in terms of winning and losing becomes inappropriate and those who play to win and triumph over losers become socially unacceptable oafs?

ADDED: I am reminded of the perennial efforts to restructure law school to suit women. Recently, in the Harvard Crimson:
Harvard Law student Jessica R. Jensen hates the Socratic method. “It’s the worst thing in the world,” she said. “It forces you to talk like a man... It made me feel really uncomfortable and incompetent at first, and it really impacted my performance in classes the first year.... You feel like you don’t know the material really well because you feel like an idiot in class.”
The worst thing in the world? Worse than coal mining or — the coal miner's alternative income source — the Tour de France?
Employed in some form across most classrooms at Harvard Law School, the Socratic method, a teaching style that relies on cold-calling, lies at the heart of the debate over gender issues and serves as a focal point for the Shatter coalition. Today, many students and faculty have raised concerns over the teaching method, saying that men are more likely to participate voluntarily in Law School classes than women....

Yet the root cause of this disparity remains contested, as professors, students, and administrators debate whether the Socratic method—the traditional form of legal pedagogy—needs to be adapted to account for gender disparities in the classroom.
Note that both calling on students and relying on volunteers is bad for women.
“Women take longer to process thoughts before they feel comfortable to say them out loud than men do,” Jensen said, adding that men feel more natural in that kind of classroom atmosphere.
I guess as long as you mean well — which is to say, you think and get others to think you're helping women — you can engage in sex stereotyping even when it's disparaging women. I know you can restate Jensen's stereotype so that it's more flattering to women — a paraphrasing skill you might want to work on. Just say that women are reflecting deeply, forming more refined ideas, and contemplating the social dynamic of the classroom —  while these brutal, competition-addicted men lunge at the first opportunity to dominate and blurt out whatever comes to mind with little concern about what others in the room think about them.
Harvard Law professor Lani C. Guinier ’71, who has authored several articles on legal pedagogy, said... “women’s reaction to law school is an important warning sign, but a warning sign that the problem will not go away simply by focusing on helping the women think more like their male counterparts”....
Inclusiveness toward women changes things.

Blue sunset.

On Mars.

"The harrowing last pleas... were left in a lengthy voice mail on a friend’s phone..."

"... though prosecutors wouldn’t say whether she accidentally or purposely dialed the woman for help."

"I wish that gay people would get the right to marry, and then not a-one of them would do it."

"I wish they'd say, 'Fuck you! We don't need your stupid marriage!' You need to listen to me: Nobody wants to go to your wedding. Nobody does. People will give you double gifts if you elope, I guarantee it! Your wedding is not going to be fun. It's just going to be another wedding, and nobody wants to go."

ADDED: I remember, back when the gay marriage issue first emerged, a former student of mine — a gay man —  confessed to indecision over the issue. Antagonism to the conventional institution of marriage might be the better alternative. I compared it to a golf club that discriminates against women. I don't need to want to play golf to oppose the discrimination. The message of exclusion hurts even those who, given the choice, would not enter.

Rachel Jeantel's inability to read cursive leads to articles about why we're even teaching cursive anymore.

Here's one: "Is cursive writing dead?"
A single sentence, uttered in the trial of George Zimmerman for the shooting of teenager Trayvon Martin, has catapulted an issue into the national spotlight.

When asked if she could read a letter in court, witness Rachel Jeantel, her head bowed, murmured with embarrassment, "I don't read cursive," according to court testimony.
Jeantel was embarrassed, so let's all stop. Let's find everything that some people can't do and feel embarrassed about. And let's ask: Is this really necessary? Is this serving a purpose... other than to make some people feel embarrassed?

Jeantel is an icon not only in the fight to end education in cursive handwriting, but the fight to spare everyone embarrassment. This is the necessary extension of the struggle against bullying, a struggle to control deliberate meanness. But think of all the unintentional things that create emotional burdens for some people. There was a time when sidewalks lacked ramps for wheelchairs, not because anyone was out to make life difficult for wheelchairs, but simply because we failed to notice. Step up — wheel up — and become aware of all the needless barriers out there.

ADDED: When I learned cursive — in the late 1950s in northern Delaware — the word "cursive" was not used. We just called it "writing," "handwriting," or — I think — "manuscript" or "script." Consequently, the word "cursive" has always seemed strange to me.

I hear the ugly words "cur" and "curse," but, looking it up in the (unlinkable) OED, I see the etymology is connected to the Latin for "run" — cursīvus — and the idea is: "Written with a running hand, so that the characters are rapidly formed without raising the pen, and in consequence have their angles rounded, and separate strokes joined, and at length become slanted."

The word "cur" — meaning a low-quality dog — goes back to Middle Dutch, Swedish and Norwegian.
Middle English curre corresponds to... Norwegian (widely-spread) dialect kurre, korre ‘dog’, etc. The latter is generally associated with the onomatopoeic verb Old Norse kurra to murmur, grumble, Swedish kurra to grumble, rumble, snarl, Danish kurre to coo, German obsolete and dialect kurren to growl, grumble, murmur, coo....
So hear the grrrr in "cur."

The word "curse," the OED says, has unknown origin: "Late Old English curs, of unknown origin; no word of similar form and sense is known in Germanic, Romanic, or Celtic."  (Of connection with cross, which has been suggested, there is no trace.)"

Interesting to see that people have imagined that "curse" had to do with "cross," even as I imagined that "cursive" had to do with "cur" and "curse." What words have influenced your understanding of other words? Isn't that something that happened to you a lot when you were a child? Did you ever find it emotionally difficult to learn about something because you made an imaginative connection like this? Would "cursive" be easier to learn if we called it "script"?

Is charitable giving too emotional?

If you leave it to sentimental humans to determine where the money goes, you end up with a whole lot of guide dogs for the blind. Because: dogs! And: blindness!

“My father gave a lot to religious stuff because he was religious... He was also a bleeding heart.” She recalled him crying as he watched the nightly news and then making a donation to a charity aimed at easing whatever troubling situation he had seen.
Remember all the money given to help the dogs seen in the news coverage after Hurricane Katrina?

NYT editorial: "Mr. Holder’s dithering helps no one."

The issue? Telling Colorado and Washington how the feds will respond to their vote to legalize marijuana.
The status quo is chaotic and untenable. If you live in Denver or Seattle and you are thinking of applying for a license to sell marijuana, you have a right to know whether federal prosecutors will move to seize your property and jail you.
Holder's had more than 7 months to come up with an answer. And he did say he would answer. So it's not as though the answer is (deliberately) no answer — that is, the feds intend to say to these states: Go ahead and bumble along in the shadow of the federal law, knowing that, anytime we want, we might spring.

The NYT also repeats the argument that enforcing the anti-marijuana laws is "racially biased, with African-Americans far more likely than Caucasians to be arrested for possession despite similar rates of use across ethnic groups."

June 28, 2013

"Rare bird last seen in Britain 22 years ago reappears..."

"... only to be killed by wind turbine in front of a horrified crowd of birdwatchers."

At the Wildflower Café...


... you can talk about whatever you want.

"Three judges on the 9th U.S. Circuit Court of Appeals ruled that same-sex marriages can resume 'effective immediately' in the state of California..."

... says Breaking News email from CNN.

So! I'm glad I didn't get sucked into the legalistic argle-bargle about the effect of the Supreme Court's Prop 8 case. Did you read any of that? I did, but I chose not to inflict it on you. Perhaps some local functionary will refuse to record a gay marriage and there will be more litigation, but really... get a clue. It's over.

"It may be just me, but the Drive-Bys are not talking about the amnesty bill vote from yesterday very much."

Said Rush Limbaugh today. (Drive-Bys = mainstream media.)
I think they don't want to report what's in this bill. They don't want people concerned with Alec Baldwin's latest rant to know what's in this. They don't want people occupied, focused on Paula Deen to know what's in this. They don't want people who can't believe the star witness at the Zimmerman case....

The latest is that it was reported by some British newspaper that Alec Baldwin's wife was tweeting smoothie recipes at the funeral for James Gandolfini.... Paula Deen said the N-word 30 years ago, and has probably cried 15 buckets of tears about it all week long...

"Someone wrote that my wife was tweeting at a funeral. Hey. That’s not true. But I’m gonna tweet at your funeral."

Tweets Alec Baldwin (referring to the James Gandolfini funeral).

More tweets from Baldwin's now-deleted Twitter account at the link. And I'd just like to say... in the future, we will be tweeting and texting from funerals. Won't we?

Will it be okay, once we get used to it, to tweet at funerals?
pollcode.com free polls 

"Judging from this 'mission' statement, the problem that Tina Gong’s cartoon vagina is supposed to solve is not that women can’t find their genitalia..."

"... but the 'cultural stigma' that makes them feel bad about … doing whatever it is they do with it, as often as Tina Gong does it, which seems to be pretty much all the time."

Writes Robert Stacy McCain, displaying an image that I'm not going to copy here because to my eye, it depicts the female genitalia as a baby. I think it's safe to click over there, but my answer to McCain's wondering how women can be supposed to be so dumb is that this is aimed at children and seems to proceed on the theory that little girls need to learn to play with themselves by perceiving their genitals as baby dolls.

McCain links to Daisy Buchanan at The Guardian, who says it "feels patronising."
Any woman gamely negotiating her neglected areas is probably going to be put off by the colour scheme, which features more pink than a Paris Hilton perfume launch. Similarly, there's something strange and infantilising about the cartoon instructions.
The simple answer is: It's aimed at children. This is what — back in 1994 — people were afraid the Surgeon General Jocelyn Elders was talking about when she said "I think that [masturbation] is part of human sexuality, and perhaps it should be taught" to young people. What we are looking at now are the teaching materials.

Even if this wasn't aimed at children, I would still object to a cartoon that turns the vagina into a baby. It's sexualizing babies! Talk about a cultural stigma that makes you feel bad about it.

"What does anybody learn? I'm not sure what the purpose of these teaching moments are."

Wonders John McWhorter, talking to Glenn Loury about the Paula Deen thing (which the NYT columnist Frank Bruni had declared a "teaching moment").

It's at least a teaching moment in the sense of: this'll teach you not to be the next teaching moment.

IN THE COMMENTS: Lem said: "I voted with my wallet.... and I don't have much. In fact, I have nuthing."

"South Africa's Mandela 'improving' as Obama flies in."

Headline at Reuters inspires me to compose a poll. (I wish Mandela well and apologize in advance for the skepticism displayed here, which has nothing to do with South Africa's national hero, but with the U.S. President and the journalism profession, both of which desperately need critique.)

What is, most likely, the truth behind this headline?
pollcode.com free polls 

"Darrell Issa’s committee says Lois Lerner waived her Fifth Amendment rights..."

"... but her attorney says she isn’t going down without a fight."
The House Oversight and Government Reform Committee voted 22-17 on Friday that the embattled IRS official voluntarily waived her rights by reading an opening statement during a hearing last month on the agency’s tea party targeting scandal.

"What’s the most intellectual joke you know?"

Summarizing the results of a great Reddit thread. Example:
Jean-Paul Sartre is sitting at a French cafe, revising his draft of Being and Nothingness. He says to the waitress, "I'd like a cup of coffee, please, with no cream." The waitress replies, "I'm sorry, Monsieur, but we're out of cream. How about with no milk?”

"Bert and Ernie clearly love each other."

 But does Ernie suck Bert’s cock? I don't think so.

IN THE COMMENTS: Rabel said: "As I understand my puppets, that's Elmo's job."

ADDED: I remember when it was considered awful for Jerry Falwell to perceive Tinky Winky as gay.

Just when you think you're alone, suddenly there are 25 cops on bikes...

... what are the chances that all 25 of them would look the other way?
"There they are, on the first base line... There's a bench, she is bent over the bench and our friend is behind her with his pants down to his ankles banging away."
Can we extract some tips for how to get away with having sex outdoors? Quite aside from the bad luck of 25 cops, I can see at least 3 major flaws in their tactics.

"Nationalized gay marriage, now inevitable."

Explains Charles Krauthammer, who's not happy about this.
If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?

Which is exactly where the majority’s [Equal Protection] rationale leads — nationalizing gay marriage.... This is certainly why David Boies, the lead attorney in the companion Proposition 8 case, was so jubilant when he came out onto the courthouse steps after the ruling. He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.

So why didn’t Justice Anthony Kennedy, the traditional swing vote who wrote the majority opinion on DOMA with the court’s four liberals, take that step?
It's about timing, slowing things down a bit and giving people a chance to accommodate to things.

"It's like watching someone have sex with your wife's desk."

Said Jon Stewart about watching John Oliver guest-host on "The Daily Show."

"John Roberts’ Openly Gay Cousin Will Now Be Getting Married."

TPM reports.
[Jean] Podrasky says she’s just as surprised that Roberts voted to uphold DOMA, as she is that he sided with the majority in throwing out the Prop 8 case on procedural grounds, which had the effect of making gay marriage legal again in California. Roberts’ split means that despite believing the federal government should continue not to recognize same-sex marriages, he helped clear the one obstacle standing in the way of his cousin and her fiancee.

“I want to say I’m from a very, very big family — I have 12 cousins on both sides of the family,” she says. By that measure, even though he has immense power as Chief Justice, Roberts is just on the other side of a family disagreement. “I want to say that quite a bit of my family on that side are quite conservative and pretty Catholic. We have differences of opinions on many many things, but we are still family. He is about 10 years older than me, so we grew up at different times... I tend to see him at family functions. Basically weddings, funerals, celebrations things like that.”
Whether he'll be invited to her wedding is a question she's diplomatic about not answering:
“I actually don’t know,” she told me. “I’m certainly inviting family [but] we don’t have our guests lists yet.”

"Once again, it was simply not a very good day at all for the prosecution."

"The primary State witnesses today were Rachel Jeantel, Jenna Lauer, and Selma Mora. The first had her credibility substantively destroyed, the second was powerfully – almost humiliatingly – co-opted by the defense, and the third provided testimony entirely consistent with the defense’s theory of lawful self-defense."

Very detailed coverage of the Zimmerman trial, with video clips, over at Legal Insurrection, where the analysis is clearly pro-defense, but good.

"So many people here, people that I otherwise respect, have written so much cloaked or naked vituperation about gay people..."

"... and our effect on civilization, that what little sympathy I had for your 'feelings' has long evaporated."
At this point in my life I'm finished with the lot of you, the plantation master so-called "liberals" who are less distinguishable from Fascists every day, and the so-called small-government "conservatives", who have such little faith in their God and the eternal and sacred institution of marriage that they bray for the State to enshrine their doctrine in secular law, and scream "Apocalypse!" when it doesn't happen.
Writes Palladian, in last night's café, where the whimpers of the losers of the DOMA case continued, along with slurpy wound-licking over my calling them losers — which is what they were, having lost in that case — and advising them not to whine over the more-or-less false perception that they'd been called bigots.

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"The skyrocketing cost of a college education is a classic unintended consequence of government intervention."

"Colleges have responded to the availability of easy federal money by doing what subsidized industries generally do: Raising prices to capture the subsidy. Sold as a tool to help students cope with rising college costs, student loans have instead been a major contributor to the problem."

Is Will.i.am suing Pharrell Williams for using "I am OTHER" and horning in on his "I am"?

I am so you can't be. Will.i.am's lawyer provided this legalistic argle-bargle:
"Will.i.am is not suing Pharrell Williams... What Will.i.am has done is what any trademark owner must do to protect and maintain a trademark. This is a run-of-the-mill trademark dispute that has been going on since late last year. In order to avoid weakening or losing his trademark, Will.i.am has an obligation under trademark law to monitor and defend his trademarks against confusingly similar marks. Will.i.am has registered several trademarks, including 'I AM', which is also emphasised in, and a significant element of, his professional name. We think their proposed trademark is too close to our registered and common law trademarks. They disagree. We hope to work out a sensible compromise that will allow both parties to move forward without unnecessary acrimony."
So don't call this suing AND don't call yourself "I am," especially in the music business and where you seem to be exploiting the "William" name and the simple cleverness of seeing the "I am" in William, and anyway, your name is Williams, with an "s," so that's some awkward appropriated cleverness. Like I ams. So go infringe on that dogfood, why don't you? Or... I mean... cease this unnecessary acrimony.

By the way, I thought God owned the trademark on "I am":
I Am that I Am (אֶהְיֶה אֲשֶׁר אֶהְיֶה, ʾehyeh ʾašer ʾehyeh...) is a common English translation...  of the response God used in the Hebrew Bible when Moses asked for his name (Exodus 3:14)....

Ehyeh-Asher-Ehyeh (often contracted in English as "I AM") is one of the Seven Names of God accorded special care by medieval Jewish tradition. The phrase is also found in other world religious literature, used to describe the Supreme Being, generally referring back to its use in Exodus.
If God is I Am that I Am, then Will.i.am must already be an OTHER I am. Suggested legalistic argle-bargle: one more reason for Pharrell Williams to step back.

UPDATE: The 2 men settle the lawsuit in March 2014.

June 27, 2013

At the Spider Leaf Café...


... you can talk about whatever you want.

"The Senate on Thursday approved the most significant overhaul of the nation’s immigration laws in a generation with broad bipartisan support..."

"... sending the bill to the Republican-controlled House, where there is significant opposition from conservative members and where the fight could extend into 2014."
But given the strong 68-to-32 vote, with 14 Republicans voting in favor, the Democratic leadership and the bipartisan group of eight senators who drafted the original bill seemed determined to savor the moment. Vice President Joseph R. Biden Jr. presided over the vote as senators announced their positions from their desks, in a ceremonial procedure reserved for special occasions.

Take care of yourself.

It's possible to be over 100 years old and in fine shape.

"MIT’s incoming class hacked the Harvard 2017 website Sunday night..."

"... by replacing all the pictures with Mitt Romney’s mug."

"Following allegations that actor Shah Rukh Khan (SRK) conducted a test to determine the sex of his yet-to-be-born surrogate child..."

"... the state government and BMC have decided to crack down on genetic counselling centres. A report is expected in 15 days."

All over the world, it takes a celebrity to bring an issue to the surface of the public mind.

What accounts for this sudden and shocking spike in bigotry?

"A year and a half ago, even the president of the United States opposes gay marriage.  President Bill Clinton, a Democrat, signed DOMA into law.  Now all of a sudden, after Obama changes his mind, the whole country supports gay marriage, and those who don't are bigots."

What accounts for this sudden and shocking spike in bigotry?

It depends on what the meaning of bigotry is. (To paraphrase that humanitarian, Bill Clinton.)

But — to quote Marbury v. Madison — as quoted in the DOMA case, United States v. Windsor, "‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803))." (I know, who quotes Marbury like that? And what the hell was Zivotofsky v. Clinton? Was there some insuperable urge to bring up Bill Clinton? The Clinton in Zivotofsky was Hillary Clinton, in her Secretary of State role, and this was the case about the State Department's refusal to list Israel as the place of birth on a U.S. passport for a person born in Jerusalem.)

So if it's the Court's duty to define the terms, and opposition to same-sex marriage is defined as nothing but bigotry, then it's the Court's decision in Windsor that accounts for the sudden and shocking spike in bigotry.

But let's be clear about a few things.

1. The majority opinion in Windsor did not use the word "bigotry" (or "bigot"). That word appears in Chief Justice Roberts's dissenting opinion: "At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry." Justice Alito also uses the word: "Acceptance of [Windsor's] argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools."

2.  The majority's expression is "a bare congressional desire to harm a politically unpopular group," which might sound extreme, but it appears in the case law going back to the early 70s, and it's a stock phrase used to characterize the government's interest when the Court is applying minimal scrutiny and therefore needs to say that there is no legitimate governmental interest.

3. What that "bare... desire to harm" language really means is: We don't want to have to heighten scrutiny for this discriminated-against group — they don't want responsibility for what that would mean in future cases — but we do want to be able to strike this down while staying at the minimal scrutiny level.

4. This doctrinal maneuver produces the strange impression that the Court is calling Bill Clinton and the majority of the members of the 104th Congress a bunch of bigots.

5. Now lots of traditionalists have the raw material to whine and cry about being called bigots. I doubt if that will work out very well for them, but they've been stewing in their own juice for a long time, and they're going to find it hard to stop. Unfortunately, same-sex marriage was originally presented as a conservative idea, and traditionalists could have gotten out in front of liberals on this issue if they'd listened to the original argument and predicted the future better, and now they'll have to scramble to improve their image. If they think crying about being called bigots — when, again, the majority didn't even use that word — is going to help, I just have to laugh. You took the opportunity to oppress when it was there, and now that it's gone, you want to say you are oppressed. Man up, losers. You lost. And you deserved to lose. Now, stop acting like losers. If you can. (I bet you can't!)

"[S]ome have wondered if Wales, who couldn’t figure out a way to become rich off his innovation, was cynically making a play to cash in on being a great humanitarian."

From the NYT Magazine article "Jimmy Wales Is Not an Internet Billionaire."
Wales... realized early on that the community would revolt if he were to monetize Wikipedia by selling ads. He may now travel the world giving speeches and even include Bono as a friend, but Wales’s celebrity relies largely on being the guy who made the sum of the world’s information free without making a penny himself. As such, his reputation remains inextricably linked to the noisy, online volunteers who got him there.
Much more at the link.
Wales likes to invoke the higher purpose of Wikipedia. He applies his libertarian worldview to the Internet and has taken on institutions like the United States government and Apple for threatening to curb the free exchange of information on the Web....

[His] proximity to famous people doesn’t sit well with some members of the Wikipedia community who assert that Wales’s new life is, in some ways, contradictory to the egalitarian online world he created.....

Wales... ensures he is not taken for a radical. He treads carefully when weighing in on more extreme members of the free-culture movement, like Julian Assange — who he has criticized for using the “wiki” name — and online hacking collectives like Anonymous. Wales and I met for lunch the day after the 26-year-old computer programmer and Internet activist Aaron Swartz killed himself. The community had erupted with calls for Wales to weigh in, but he was hesitant. “People have been pushing me to comment, but I didn’t know him,” Wales told me. He has also stayed mostly mum on Edward Snowden, the contractor for the National Security Agency who leaked confidential information about widespread snooping by the United States government....
The article begins and is larded with info about his wedding and his wife (and wives), which I suspect is another example of the NYT's hackneyed, desperate playing up to female readers.

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Rachel Jeantel made it sound like Travon Martin profiled George Zimmerman... or... what is a "creepy ass cracker"?

TalkLeft describes "a train wreck" witness:
She said (on direct exam no less by the prosecutor) that shortly after first spotting Zimmerman, Martin described Zimmerman to her as a "Creepy-a*s Cracker" and later, described Zimmerman a few times as "this ni*ga" (as in this ni*ga following him.) The two minute clip above is of Rachel and the prosecutor repeating creepy a*s cracker over and over as the court reporter struggles to make out what she's saying, Rachel explaining that creepy as* cracker means a white person, then and expressing concern the creepy guy might be a rapist.
So "cracker" is a way of saying white guy, but "ni*ga" is apparently just a way to say guy? I can understand that, but I'd like to ask a few questions — out of curiosity. I'm not saying the defense lawyer should ask this on cross-examination. (Which should make for some interesting TV today.) I'd like to know whether perhaps Trayvon Martin perceived Zimmerman as a person of color and not a white man at all. You assume that there's no way he'd say "cracker" if he didn't see him as white? But he didn't say "cracker." He said "creepy ass cracker." I understand the use of "ass" as an intensifier connected to the adjective "creepy." Creepy-ass cracker, as in very creepy cracker.

But "ass" could go with "cracker" — "ass-cracker." The conversation continued, according to Jeantel: "So... he told me the man was looking at him, so I had to think it might have been a rapist."

Why rapist? A man raping a man? How common is that as a fear? But it was the first thing Jeantel thought to say after he said creepy-ass cracker/creepy ass-cracker. The term "ass cracker" could easily mean a man who rapes a man, especially one who goes after a teenaged boy.

Urban Dictionary has some definitions of "ass cracker" that predate this trial:
1. ass cracker...
One who not knowing the code or combination to a particular slice of ass is nonetheless able to get inside the ass...

2. Ass Cracker...
One who engages in anal sex.
That wanker is an ass cracker.

3. Ass Cracker...
A term used to describe a man with a large enough penis, to brake the anus of the woman or man he is having anal intercourse with.
"Damn, his's cock is so big, he is definatly an ass cracker!"
The word "creepy" makes special sense if you reinterpret the "ass" to go with "cracker." Martin said a man was following him, looking at him. He might have thought Zimmerman was a man out looking for sex and was watching him for that reason. What conversations had Martin had in the past with Jeantel about worries of this kind. She "had to think it might have been a rapist."

TalkLeft says:
She describes how Martin was "right by his father's house" after he lost Zimmerman, and refused to run home. I think he had plenty of time to go home, he obviously chose not to....
Why didn't Martin take Jeantel's advice and run home? The rapist/ass-cracker theory makes sense of Martin's decision to go after Zimmerman. If he saw Zimmerman as a sexual predator, he might think confrontation was a good idea or even an important step: These creeps in the neighborhood need to know that I'm not their prey. It's not enough to run inside daddy's house. My manhood must be established here and now or I can't walk free around here anymore.

"I'm not going to be scrambling jets to get a 29-year-old hacker."

Said Barack Obama, noting that he would use "well-established" channels to get Edward Snowden, according to a CNN Breaking News email.

Note the minimizing of Snowden in the expression a "29-year-old hacker." Like he's just a kid who fiddles with computers.

And "scrambling jets" seems to say: Forget that whole drone program I'm so famous for. Or is that what "well-established" channels means?

June 26, 2013

At the Wet Lettuce Café...


... because Lem wanted a café and because I think some of you might need a break from all the legalistic argle-bargle. And it was Lem who asked "Is Argle-Bargle another way of saying bullshit?" And the answer is most definitely yes, and as you know, I'm immensely interested in the concept of paraphrasing. In other words, I want to be the Professor of Paraphrase. And by the way, did you know that the song "Fly Me To the Moon," was originally titled "In Other Words"? And that Frank Sinatra sings the line "In other words, darling, kiss me" in these other words: "In other words, baby, kiss me"? Why does "darling" seem so old fashioned? Does anyone use the endearment "darling" anymore (other than sarcastically, as in "yes, darling")?

Okay, you get the message: Talk about random stuff. Be amusing and delightful. Or something.

"Justice Scalia Used The Term ‘Argle-Bargle’ In A Scathing, Condescending DOMA Rant."

Business Insider gets to the meat of things.

Specifically, Scalia said: "As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by '"bare . . . desire to harm"' couples in same-sex marriages."

I started a new tag today. No, not "argle-bargle." Paraphrase. I've become immensely interested in the concept of paraphrasing, and I'm hypervigilant about paraphrasing about paraphrasing, and I see that there. Scalia has a really cheeky way of saying "so what you're really saying is...": whatever disappearing trail of its legalistic argle-bargle one chooses to follow....

Memorize that. Use it. It's sure to annoy some people and give others a great sense of relief. For example, law students may enjoy hearing the lawprof say whatever disappearing trail of its legalistic argle-bargle Justice X chose to follow, the real rationale is...

So high-handed! So liberating!

The (unlinkable) OED traces "argle-bargle" — which means "Disputatious argument, bandying of words, wrangling" — back to 1872:
1872   A. J. Cupples Tappy's Chicks 252   During these days of ‘argle bargle’, as our smith's wife called it.
a1881   Carlyle in W. A. Knight Retrospects (1904) 15,   I have for a long time given up the argle-bargle of metaphysics.
1927   Observer 11 Dec. 15/2   Can they..stand up to a good and sufficient argle-bargle that lasts for the best part of three hours?
UPDATE: 2 days later, I actually did make a tag for argle-bargle — as the continued use of the term appealed to me — and came back to add it here.

"Typical observers of [Big Mountain Jesus] are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer."

Said the District Court, rejecting an Establishment Clause challenge by the Freedom From Religion Foundation, and prompting the First Things blog to say:
It’s unfortunate that current doctrine favors the trivialization of a religious symbol as evidence of its constitutionality, but that’s where we are. (Remember the candy canes and reindeer around the creche?)
Yeah, well, you know how to keep religious symbols from getting trivialized? Keep them away from the government. 

Roger Williams, “Mr. Cotton’s Letter Lately Printed, Examined and Answered” (dated 1644):
When they [the Church] have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, etc., and made His Garden a wilderness as it is this day. And that therefore if He will ever please to restore His garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and all that be saved out of the world are to be transplanted out of the wilderness of the World.
But you may enjoy the wilderness, when you're out there skiing on Big Mountain and you encounter Jesus and give him a mitten or a high 5.

DOMA as "a bare congressional desire to harm a politically unpopular group."

In United States v. Windsor, the Supreme Court finds that DOMA "violates basic due process and equal protection principles applicable to the Federal Government." (The constitutional text is the 5th Amendment which only says "due process," but the Court has long viewed "equal protection," which is explicit in the 14th Amendment, as implicit in the 5th Amendment.) Justice Kennedy writes for the majority:
The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).
The unpopular group to be harmed in Moreno was hippies. To understand the scourge of hippies as it was seen at the time, I highly recommend this 1971 NYT  article: "Ripping Off, The New Life Style" (citing the Jefferson Airplane lyric "All your private property is target for your enemy/And your enemy is/We-e-e"). Congress was hoping to keep food stamps away from hippies, and that didn't cut it.

So is keeping marriage away from gay people no better than denying food stamps to hippies?
In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 19 (quoting Romer... at 633). 
How is excluding gay people from marriage unusual? It's an old tradition. What's unusual is Congress horning in on an area of traditional state regulation:
DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. 
And there's "strong evidence" that DOMA had "the purpose and effect of disapproval" of same-sex couples.
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
That language about "stigma" and "a separate status" should be useful in challenging state law that creates "civil unions" for gay people, though the problem in Windsor was only about the federal government's refusal to recognize marriages that the states had validated.
... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive....
Ultimately, the Court finds "no legitimate purpose" —  only "the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." Again, it's hard to see why the states' willingness to dignify these relationships is essential, but that's the question before the Court today. I don't think, in the end, that this is really very much about federalism, except as a steppingstone. This is a case about rights. Even though there's no heightening of the level of scrutiny, the Court aggressively characterizes the government's purported legitimate interests from the rights claimants' point of view and sees nothing but disparagement, denigration, and stigma.

ADDED: I'm just getting to the Scalia dissent saying the Kennedy opinion may "initially fool[] many readers... into thinking that this is a federalism opinion" and seeing no "point" in the long discussion of state power to define marriage other than — he guesses — to make a "pretense" that this case is only about limiting the federal government and "leaving the second, state-law shoe to be dropped later, maybe next Term." I said "steppingstone." Hopping across a stream, taking off shoes... the point is the same. It's a case about rights.

Should respect for the initiative process have moved the Supreme Court to stretch the restraints of the standing requirement?

Chief Justice Roberts, writing for the Supreme Court majority in Hollingsworth v. Perry, says:
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
There was some argument that there needed to be a way for the results of the state's initiative process to be defended when the state's elected officials didn't like those results, as happened with Prop 8. The dissenting opinion said the majority "disrespects and disparages" this political safeguard that is part of California law. The Chief's answer was the state can have its law, but it doesn't have power to change the federal law of standing that limits federal courts.
[T]he fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.

The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.
In other words, separation of powers beats federalism. Not always, but here, where the separation of powers is a matter of federal constitutional law, and the federalism interests are only policy concerns.

The dissenting opinion is written by Justice Kennedy and joined by Justices Thomas, Alito, and Sotomayor:
The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.”...

The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. 
Roberts's opinion acknowledges all that, but it's simply policy analysis, and federal standing doctrine has — for a long time — rejected arguments that come in the form of if these plaintiffs can't sue, an important legal issue cannot be raised.

I'm particularly unsympathetic to this argument in the context of needing to defend the results of the initiative process. Long ago, the Supreme Court had a case challenging the initiative process as a violation of the Article IV guarantee of a "Republican Form of Government" to every state. In that case, Pacific States Telephone & Telegraph v. Oregon (1911), the Court said it could not reach the substantive merits of the question because of the so-called "political question" doctrine — which, like standing, is a justiciability doctrine about the power of the federal courts.

It would be ironic if reverence for the initiative leveraged these plaintiffs past the normal limits on judicial power, since it was a limit on judicial power that prevented us from ever finding out whether lawmaking by initiative — rather than in a deliberative body of elected representatives — is unconstitutional.

Justice Kennedy ends his dissenting opinion saying:
The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. 
That's interesting political philosophy about democracy, but the people also made the federal Constitution, which is superior to state law, and which has that guarantee of a republican form of government. So let's not get too sentimental about direct democracy. If we want to get back to first principles, let's talk about republicanism.

(Here's Erwin Chemerinsky's article "Why Cases Under the Guarantee Clause Should Be Justiciable," which was part of a symposium at the University of Colorado Law School in 1994, back when there was a challenge to an initiative in Colorado that barred laws protecting gay people from discrimination. I was there too and wrote a response to Prof. Chemerinsky — here's my "Time for the Federal Courts to Enforce the Guarantee Clause?" — saying that if the Supreme Court felt motivated enough about this challenge, before it would change the justiability law about the Guarantee Clause, it would find the right it needed in the Equal Protection Clause. And that, by the way, is exactly what the Court proceeded to do, in Romer v. Evans — a case written by, of all people, Justice Kennedy.)

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"Time may be running out for U.S. fugitive Edward Snowden to get out of Russia."

"The former National Security Agency contractor has been holed up in the transit area of Moscow airport since Sunday, but Snowden may only have been given a Russian transit visa valid for three days...."
"Transit passengers who have a ticket for a connecting flight and documents necessary to enter a third country can get a Russian transit visa.... If Snowden has these documents, then he has the right to apply for a transit visa right in the airport, in the consular point, and could well have done that."
This sounds like the boring part of the movie "Casablanca." Why can't he get another transit visa?

It's the last day of the Supreme Court term.

Get ready to talk about same-sex marriage. Here's the live-blogging at SCOTUSblog. The action starts at the top of the hour.

UPDATE 1: DOMA. 5-4. Roberts and Scalia and Thomas and Alito dissenting. "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." "DOMA singles out a class of persons deemed by a State entitled ot [sic] recognition and protection to enhance their own liberty."

UPDATE 2: Here's the PDF of the opinion in Windsor. From the Scalia dissent, something I found looking for whether the majority applied heightened scrutiny:
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 19. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.
UPDATE 3: From Kennedy's majority opinion, there's a discussion of federalism, but it's not the basis of the opinion:
[I]t is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.
UPDATE 4: From the Roberts dissent:
At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
Kennedy's opinion doesn't use the word "bigotry." It says:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
UPDATE 5: The next case isn't about ssm. A unanimous opinion in Sekar, written by Scalia, about the Hobbs Act: "Attempting to compel a person to recommend that his employer approve an investment does not constitute the obtaining of property from another under the Hobbs Act."

UPDATE 6:  The Prop 8 case is resolved on the standing ground,  "line up is 5-4: Kennedy dissents, joined by Thomas, Alito, and Sotomayor.... " The decision of the Ninth Circuit is vacated and remanded." Scalia provides the 5th vote with the liberal Justices. [ADDED: No, Sotomayor is also dissenting, and Roberts is in the majority. So it's a mix.] From the opinion: "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

UPDATE 7: Here's Hollingsworth v. Perry, PDF, the Prop 8 case, written by the Chief Justice.
For there to be... a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury.
That's a totally well-established statement about standing, as most lawyers know (I hope!)

UPDATE 8: The lack of standing happened AFTER the District Court ruled Prop 8 unconstitutional. The losing party, California Governor Schwarzenegger, decided not to appeal, to accept the result, so only what the Circuit Court did must go.

UPDATE 9: Roberts, in Hollingsworth, says that without the governor as a party, the case continued with individuals who had intervened but were not ordered by the district court to "to do or refrain from doing anything." So there was nothing "personal and individual" about the case for them. They argued that they had a "''"unique," "special," and "distinct" role in the initiative process — one "involving both authority and responsibilities that differ from other suporters of the measure."'” But Roberts said that interest only had to do with "the process of enacting the law," nothing that came after that. "Article III standing 'is not to be placed in the hands of "concerned bystanders," who will use it simply as a "vehicle for the vindication of value interests."'"

"It's your day."

Or is it?

"Nerf footballs purchased for a team-building exercise but never used and currently stored in a filing cabinet."

From a list of things we bought for the IRS.

The aphorism in the abortion clinic: "Our feelings are our most genuine paths to knowledge."

Here's CNN's article "Texas filibuster on abortion bill rivets online" — about state senator Wendy Davis's effort to stop a bill that would ban abortions after the 20th week of pregnancy and the tweeting it inspired, including President Obama's "Something special is happening in Austin tonight."

There's also a video, and I'm inspired to write about an aphorism you can see at 1:57: a shot of a room in a clinic — presumably a room where abortions are performed. The label on the door reads "Audre," and on the wall, in large capital letters, there's a quote and the name "Audre Lorde." The quote reads "Our feelings are our most genuine paths to knowledge."

Audre Lorde was a Caribbean-American writer (1934-1992) who is a source of some popular feminist aphorisms, notably "The master's tools will never dismantle the master's house." The one painted on the wall shown in the video suggests an argument about abortion that resonates with abortion rights doctrine, that the woman finds her own meaning. The Supreme Court's cases depict the woman engaging in a philosophical/theological/scientific inquiry into the significance of the entity she may choose either to nurture within or to extricate. The Lorde quote seems like a feminist paraphrase, where the mental process runs along a path of feelings.

The woman entering the room is invited into an awareness of her feelings. Feelings are the most genuine way to your decision. Perhaps the woman entering the room thinks: I don't feel this is anything like a baby or that I am murdering anyone. Or: I hear my future child begging for life. The quote — to my eye — calls you to experience your conscience, and it doesn't let you off the hook. The painted letters seem to be the only decoration in the room. It's the place to focus your eyes throughout the procedure.

I wonder what women's names appear on the other doors. Do the names take the place of room numbers and are the rooms referred to by name in an effort to give warmth to the place? You're a name not a number.

I wonder what are the other aphorisms in the other rooms. Are they all so neutral and open-ended as to the woman's right to choose?

June 25, 2013

Why did all 3 female Supreme Court Justices vote on the side of the father...

... in a case where the single mother — with no financial support from the biological father — chose to go forward with her pregnancy and chose adoptive parents, parents who were with her in the delivery room? The father gave up his parental rights via text message before the baby was born, and the child — a little girl — lived with those adoptive parents for 2 years before the state court gave her to the father. The only reason the father had an argument for taking the child was the Indian Child Welfare Act of 1978, a federal law intended to protect Indian families from public and private welfare agencies that Congress decided had been too aggressive. The Supreme Court majority — which included the one male liberal Justice (Breyer) — interpreted the statute not to apply in a situation where the biological father had never had custody of the child. Here is a mother who happened to have been impregnated by a man who is a member of an Indian tribe. Why was it appealing to the female Justices to allow this man to intrude on the mother's choice to give the baby up for adoption?

Here's the text of the case, Adoptive Couple v. Baby Girl.

The child is 1.2% Cherokee.

Consider that the states have traditionally handled family law, and Congress's power arises from the Commerce Clause.

What do you think of Garrett Epps saying Justice Alito "looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High..."

"... signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand"? Commenters at "Did Justice Alito roll his eyes while Justice Ginsburg was speaking?" let Epps have it. Does he even know the movie? Amartel said:
If Alito had ordered a pizza to be delivered to the well at the Supreme Court, or called Ginsburg a "dick" that would be, like, a totally different story.
Likewise, Youngblood says:
Spicoli doesn't act like that in the film. Now, if Justice Alito said to Justice Ginsburg, "You DICK!" or ordered a pizza in the middle of class, that would be a different story. But little niggling gestures of disrespect aren't really Spicoli-like at all.
And CatherineM:
What I find most offensive is the Spicoli reference. Has Epps ever watched Fast Times? Jeff called Hand a dick once for ripping up his excuse, but he never mocked Mr. Hand. He was incapable. He was too high.

That's his tell. Epps is lying. I object.

To sum up, here's Henry:
Jeff Spicoli is a hero. When did liberals go all in on being turgid squares?
I don't know, man, but the Supreme Court is about to close up for the summer, and maybe all Sam Alito needs are some tasty waves, a cool buzz, and he'll be fine.  When it's October, and the Justices are back for oral arguments, maybe he will order that pizza....

At the Rain Lettuce Café...


... nobody leaves you alone.

Did Justice Alito roll his eyes while Justice Ginsburg was speaking?

Garrett Epps and Dana Milbank think so.

Milbank says "Alito visibly mocked his colleague":
Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.
... Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand. 
I don't trust the descriptions of Epps and Milbank. Maybe we could get some more discussion of the meaning of Alito's head — from some observers who like him. And then I could calculate the truth from there. But what would be better would be  cameras in the Supreme Court chambers. This is a new argument for cameras in the Supreme Court — to protect Samuel Alito from calumny.

Amusingly, Epps begins his little article with:
I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito's display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg.  Because Alito's mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.
It wasn't clear to me, and I have eyes.

Nice of Epps to want to protect me and the rest of Americans who didn't make it into the courtroom that day, but I prefer to be free to look things and form my own opinion, not to get second-hand descriptions from partisans and polemicists.

And by the way, the notion that female Justices command stronger displays of decorum than male Justices is sexist. Show some real respect.

AND: Do I detect anti-Italian prejudice? Alito is too visibly expressive. He's like a movie character with an Italian name (Spicoli)? The rule is your face should be a mask? WASP-style?

ALSO: Remember the words of one of the world's greatest Italian-Americans:

MOREOVER: Want to bet that if emotions played across the visage of Sonia Sotomayor while Alito or Scalia were articulating some nugget of conservatism that media's Epps and Milbanks would tell us that this — this! — was the empathy Obama said was essential to judging?

AND: A new post highlighting comments about what's wrong with likening Alito to Spicoli.

Justice Ginsburg says the "equal sovereignty" principle "is capable of much mischief" and brainstorms ideas for vexatious litigation.

In her dissenting opinion in Shelby County v. Holder (PDF), she frets about all the federal laws that treat states differently from each other and could be subjected to attacks based on the majority's "fundamental principle of equal sovereignty" among the states:
See, e.g., 28 U. S. C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State con­ducted such a scheme “at any time during the period beginning January 1, 1976, and ending August 31, 1990”); 26 U. S. C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U. S. C. §3796bb (at least 50 percent of rural drug enforcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this sub­section after December 22, 1987”). 
It seems to me that the "equal sovereignty" principle is an important structural safeguard in the federal legislative process, protecting us from the democratic dysfunctions of things like the "Cornhusker Kickback." This is exactly the sort of thing that ought to shake judges out of the usual deference to Congress. 

What did the Supreme Court find unconstitutional about the much-honored landmark legislation, the Voting Rights Act of 1965?

Here's the PDF of Chief Justice Roberts's opinion (joined by Kennedy, Scalia, Thomas, and Alito). The 4 liberal Justices dissent.

This is a case about Congress's enumerated powers. It's not about Congress violating rights, but the scope of its power under the 15th Amendment to enforce the right guaranteed by that amendment (the right against race discrimination in voting). This is a power to be used against state and local government, so the scope of that power implicates federalism doctrine, including the “fundamental principle of equal sovereignty” among the states.

The states can, under some circumstances, be treated differently, and they have been under the Voting Rights Act, which survived attack in the past. The problem now is that Congress relies on a formula that uses voter turnout statistics from 1972, and this covers only 9 states (and some counties). These states, subject to different procedures, wait "months or years and expend[] funds to implement a validly enacted law," while the other states "can typically put the same law into effect immediately, through the normal legislative process."

Roberts pays respect to the VRA: "The Act has proved immensely successful at redressing racial discrimination and integrating the voting process." And he acknowledges that "[p]roblems remain." But the Act was "reauthorized — as if nothing had changed."
The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then — regardless of how that discrimination compares to discrimination in States unburdened by coverage....

The [15th] Amendment is not designed to punish for the past; its purpose is to ensure a better future.... To serve that purpose, Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions....
It's not enough to say — as the dissent does — but these covered states still commit violations, Roberts says.
[T]hat is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired.
The Chief stresses that the defect lies entirely in using the old formula to treat the states differently. The Court will be criticized in the political arena, but the political response is clearly stated: "Congress may draft another formula based on current conditions."

ADDED: From the dissent by Justice Ginsburg:
Hubris is a fit word for today’s demolition of the VRA.
This is "hardly... an exemplar of restrained and moderate decisionmaking," because the Court accepts Shelby County's facial challenge to the law:
[T]he Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit — Shelby County, Ala­bama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.

Alabama is home to Selma.... Although circumstances in Alabama have changed, serious concerns remain....
I think the Court did have a word of explanation. The word was "redheads." See above.

ALSO: On March 6, 2023, I received a notice from Google that someone had made a formal complaint that this post violates someone's copyright. You can see it's entirely my own writing plus quotes from a Supreme Court case, which isn't subject to copyright. Maybe the Supreme Court copied some text without attribution, but I certainly didn't. Maybe it was something in the comments. There were 185 comments, so all I can think of is to undisplay them. This is a legal analysis of a very important case, Shelby County, so it's troubling to see it taken down.

AND: On January 2, 2024, I again received a notice from Google that someone had made a formal complaint that this post violates someone's copyright. My analysis of the problem is the same. There's nothing here that could possibly violate anyone's copyright. So, again, I'm republishing the post.

ULTIMATELY: I challenged the complaint, and I won:


The way you win is to consent to jurisdiction in a lawsuit and wait to see if they bring a lawsuit. That might sound too threatening to do, but if you do it, as I did, then if 15 days pass without their bringing a lawsuit, you get reinstated.

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Another day of Supreme Court excitement.

The place to hang out is SCOTUSblog, which live-blogs it, or here, where I quote, paraphrase, and snark, and you can comment.

UPDATE 1: Koontz, written by Alito. "The government's demand for property from a land use permit applicant must satisfy the Nolan and Dolan requirements even when it denies the permit." 5-4 in the most predictable 5-4 pattern.

UPDATE 2: Next, a case we talked about here, Adoptive Couple v. Baby Girl. This, too, is written by Justice Alito. "Assuming for the sake of argument that the biological father is a parent under the Indian Child Welfare Act, neither of the two sections at issue bars the termination of his parental rights." Thomas and Breyer have concurring opinions. Scalia has a dissenting opinion, for himself alone. Sotomayor also dissents, with Ginsburg and Kagan. And Scalia joins the Sotomayor dissent in part.

UPDATE 3: Here's the PDF for Adoptive Couple. To jump to what Scalia says:
The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.
UPDATE 4: Huge: "Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance." This is Shelby County, written by Chief Justice Roberts. "Thomas concurs. Ginsburg dissents, joined by Breyer Sotomayor, and Kagan.... Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory." [ADDED: It's 5-4, again, the typical conservative/liberal split, and Thomas — along with Scalia, Kennedy, and Alito — joins the Chief.]

UPDATE 5: Here's my discussion of the oral argument from last March: "[C]ongressional support for reauthorizing the act has increased over the years, even though the need for it has lessened.... Scalia is saying the Court needs to act because there is a dysfunction in the political process that keeps Congress from looking rationally at the actual need for the remedy that made so much sense back in 1965. Breyer's response is: Congress is still in the middle of doing what was once badly needed, it's not obvious that the endpoint has been reached, and therefore it's not time yet for the Court to act." Apparently, the majority decided it was time.

UPDATE 6: That's it — and that's plenty! — for today. Here's the PDF of the opinion in Shelby County. I'll start a new post for that case, and I will also try to get to Adoptive Couple before long. 

"Why We Should Study Cancer Like We Study Ecosystems."

Oncology ≈ ecology.
[R]ather than labeling cancer as a group of mutated cells, as the thinking goes, we should see cancer as a disruption in the balance of a complex microenvironment in the human body. Like a damaging invasive beetle eating its way through forests in Colorado, a novel disease breaking out in populations of wild birds, or loggers mowing down parts of the Amazon rainforest, cancer throws a monkey wrench into an otherwise placid, balanced system.
And once the monkeys get wrenches your entire metaphorest goes into collapse.

"Supreme Court Puts New Pressure on Colleges to Justify Affirmative Action."

The Chronicle of Higher Education sums it up in a headline.

But I question "puts." Will schools really feel that pressure? The court receiving Fisher v. University of Texas on remand feels some pressure as it must reexamine — once more, with feeling — the evidence already assembled. The University of Texas will feel some pressure to point out how the Court of Appeals can say what it said before in a newly convincing way — without all that language about deference and presumption of good faith. And maybe eventually this will wend its way back to the Supreme Court. Is anyone else really feeling pressure?

It seems to me that the Court has once again said what it always says about affirmative action and admissions: 1. Here, have some more time, and 2. Could you please speak about what you are doing in a somewhat more palatable way, okay, thanks?